31 N.Y.S. 206 | N.Y. Sup. Ct. | 1894
Lead Opinion
This suit is brought on the equity side of the court to obtain an adjudication that certain of the defendants are not en
“That the said trustees, Solomon I. Isaacs, Uriah Hendricks, and Henry Hendricks, and the survivor and survivors of them, and any trustee or trustees hereafter substituted, shall have full power, with the consent and approbation of the complainants, or the survivor of them, to be expressed by their, his, or her legal execution and acknowledgment of the leases hereinafter mentioned, to make and execute valid leases of the premises described in the bill of complaint and the schedule thereunto annexed, or any part thereof, for the term of twenty-one years, with covenants of renewal for several successive terms of twenty-one years (not exceeding three such additional terms), reserving an annual rent to be paid quarterly for the first term of about five per cent, upon the value of the property, * * * and that the rent reserved annually for the next ensuing term be at the rate of five per cent, upon the valuation so made thereof, and with such other covenants and upon such conditions as the said trustees in their discretion shall deem proper and shall consider most advantageous to the complainant Hetty Gomez and her children.”
The trustees promptly availed themselves of the permission obtained in the decree, and by leases bearing the date next succeeding that of the decree, in which the trustees were named as parties of the first part, John Peters (the lessee) of the second part, and Hetty . and Aaron L. Gomez of the third part, they leased the premises for a term of 21 years, with covenants of renewal for three successive terms of 21 years each. The lessee entered into possession, and at the expiration of the term renewal leases were executed, each for a period of 21 years; and when such period had expired, still other renewal leases of 21 years were executed. The period of the second renewal had about expired, and Hetty Hendricks, for whose benefit the trust was created, has in the meantime died, leaving a last will and testa
We are further of the opinion that the assertion is not well founded which has been made in this case to the effect that because Hetty Gomez, in whom was lodged the power of appointment conferred by the trust deed, signed the original lease containing covenants as to renewals that her appointees as such are either bound by or legally affected by such action. The trust as created gave to her all of the net income of the property, but over the property itself she was given authority to do one thing only: she could designate, in the manner provided by the trust instrument, who should have it after her death, but, in default of her máking such an appointment, the deed of trust vested the property. Beyond being entitled to receive the income from the trustees, and to exercise the power of appointment, she was without any authority whatever over the property. She could not mortgage or otherwise incumber it, even though the form which the incumbrance should take should be that of a lease for a term of years at an inadequate rent. Whether the court of chancery, which made the decree, had power to authorize the lessors to covenant for the giving of renewal leases for a period which it was certain would extend beyond the life of the trust presents a different question. That such a power should rarely, if ever, be exercised, will be readily assented to. That the authority resided in the court of chancery to direct trustees generally as to the manner in which they should discharge the duties resting upon them as such, in the absence of specific instructions in the trust instrument, has always been recognized. Indeed, it constitutes one of the acknowledged heads of equitable jurisdiction. The deed of trust in question did not expressly confer upon the trustees authority to make leases, and the object of the suit instituted by Hetty Gomez and her husband was to obtain an adjudication as to the rights of the trustees to make leases and renewals of leases for terms of years. The plaintiff was entitled to the whole of the income during all her life, and she was necessarily interested in having the property so leased as to produce the largest possible amount of rent. . By means of an appropriate complaint she presented to a court having jurisdiction to direct the manner in which the trustees should execute the trust committed to them the question whether they’ should be authorized to lease the property for a term of years, with the right of several renewal terms of like duration. The result was a decree, from which we have already quoted, authorizing the making of such a lease as the trustees did make. The complaint does not inform us what were the special facts which were presented to the court for the purpose of inducing it to authorize the making of a lease and renewals covering so many years. Whatever they Avere, they must have strongly impressed Hetty Gomez, who was entitled to the income for life, and the right to say who should have the property after her death. She was a mother, and quite likely to think of her children as the owners of the property at a subse
Appellants further insist that as the leases of 1852 and 1873 do not contain covenants of renewal, the lessee is not entitled to the third renewal, which the lessor in the original lease covenanted to give. The position of the learned judge at special term, which was, in substance, that the covenants of renewal contained in the lease ■of 183.1 entitled the lessee to three renewals of each lease, and that the omission of such covenant in the renewals granted was an immaterial circumstance, has support in Kearney v. Railway Co., 129 N. Y. 76, 29 N. E. 70, cited by him. But for still another reason are the ■covenants of the original lease binding and enforceable. The original lease has been continued in force, and in effect incorporated into and made a part of each renewal, by the insertion of a clause in the •same general form as the following:
“It is mutually declared and understood by and between the parties hereto that this present indenture of lease is made and executed and given and accepted by the said parties as and for the lease or renewal for the third term of twenty-one years, provided for by a certain indenture of lease •hereinbefore mentioned, bearing date the 1st day of November, in the year 1S31, and recorded in the office of register in Liber 260 of Conveyances, page 417.”
The judgment should be affirmed, with costs, with leave to amend within 20 days upon payment of such costs together with the costs awarded at special term.
Concurrence Opinion
I concur in the conclusion arrived at by Mr. Justice PARKER that under the trust deed the trustees had no power to make the leases mentioned in the complaint in this action. But I do not agree that such power, not being conferred by the trust deed, could be given by any decree of the court of chancery or of the supreme court. The action which resulted in the judgment under which the defendants claim to shield themselves was not an action for the construction of the trust deed, but to supplement the same by a decree of the court granting the trustees therein named powers which it is conceded were not conferred upon them by such deed.
Concurrence Opinion
In my judgment, the court of chancery had jurisdiction to make the decree in question. Whether such decree was proper under the circumstances was a question which that court had power to decide. Were it otherwise, a court of equity